¶1(concurring):
What’s in a name? that which we call a rose
¶2By any other name would smell as sweet. Shakespeare: Romeo and Juliet, ii, 2, 42 (1595), quoted in The Macmillan Book of Proverbs, Maxims, and Famous Phrases 1655:6 (1965).
¶3Whether one uses a prism or a microscope, a urine sample containing metabolites of a controlled substance is still a urine sample containing metabolites of a controlled substance. When I read the dissents of my Brothers, I sometimes think I am going mad.
¶4It is a recognized scientific principle that a sample is positive if it contains any trace of the tested substance, whether that be one kilogram (1000 grams), one nanogram (one billionth of a gram), or a pieogram (one trillionth of a gram). It is negative if it contains zero or no trace whatsoever of the tested substance.
¶5Because the dissenters seem to think there is something magical about the regulations governing drug testing, the Department of Defense might consider adopting new terms covering urine samples. For example:
¶61. Negative means zero or none, or no metabolites.
¶72. Inconclusive means more than zero but an insufficient amount to warrant further testing or prosecution based solely on the result. See United States v. Harper, 22 MJ 157 (CMA 1986); United States v. Arguello, 29 MJ 198, 207 (CMA 1989) (Cox, J., concurring in the result).
¶83. Positive means that the level of the substance in the sample is high enough for an expert to opine that an accused knowingly ingested the illegal substance.
¶9Then it will be clear that the Military Rules of Evidence will control admissibility, as they do with every other scientific test. The question will always be whether the test results are relevant and reliable for the purpose offered. The States have long since dealt with these types of evidentiary inferences arising out of breath analysis used in driving-under-the-influence (DUI) cases.